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Case 1:12-cv-24356-JG Document 849 Entered on FLSD Docket 08/12/2015 Page 1 of 9

UNITEDSTATESDISTRICTCOURT
SOUTHERNDISTRICTOFFLORIDA
MIAMIDIVISION

CASENO.1224356CIVGOODMAN

[CONSENTCASE]
PROCAPSS.A.,

Plaintiff,

v.

PATHEONINC.,

Defendant.
_______________________________/

ORDERDENYINGPROCAPS
MOTIONTORECONVENEDEPOSITIONOFJAMESMULLEN

Plaintiff Procaps S.A. (Procaps) seeks to substitute or join DPx Holdings B.V.

(DPx) as a defendant in this matter. [ECF No. 726]. However, due to the lessthan
clearrecordoftherelationshipbetweenDefendantPatheonInc.(Patheon)andDPx,
the Undersigned granted [ECF No. 776] Procaps ore tenus request to take one
depositioninconnectionwiththemotiontosubstituteorjoinaparty.Specifically,the
Undersignedorderedthefollowing:
Procaps may take one fourhour deposition of a witness of its choosing,
includingaDPxdirector,officerorexecutive,toprobethelimitedissues
arising from the lessthanclear record: whether there was a merger,
whether DPx assumed liabilities, whether DPx issued any type of
indemnification, whether any other entity assumed Patheons liabilities
(and,ifso,inwhatamountsandatwhatlevels)orissuedanyindemnity,
the identity of Newco, whether Patheon is a direct or indirect wholly

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ownedsubsidiaryofDPx(and,ifitisindirectlyowned,thenamesofthe
otherentitiesintheownershipchain),whysomeofPatheonsdocuments
identifyDPxasNewco,whetheranypriordepositiontestimonyonthese
issues was incorrect or is no longer valid, and the crossdesignation of
executivesbetweenDPxandPatheonandwhetherDPxandPatheonhave
anytypeofemployeesharingarrangement(and,ifso,thedetails).
[ECFNo.776].

Procaps selected James Mullen (Mullen) as the deponent.1 At Mullens

deposition however, the parties encountered a procedural conundrum concerning the


StipulatedConfidentialityOrder[ECFNo.86],whichlimitsaccesstocertaindocuments
marked as Confidential or Highly Confidential by the producing party. Procaps
attemptedtopresentMullenwithcertainexhibitsproducedbythirdpartiesthatwere
marked as Confidential and Highly Confidential. Pursuant to the Stipulated
ConfidentialityOrder,Confidentialdocumentsmayonlybeviewedbyemployees
of the parties, among others. Consequently, Patheons counsel objected to the
presentation of these documents to Mullen, who, Patheon claimed, is not an
employeeofPatheon,ascontemplatedbytheStipulatedConfidentialityOrder.2

Due to Mullens steadfast refusal to view the Confidential and Highly

Confidential exhibits presented to him (based on advice of counsel), Procaps now


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This development, of course, occurred with the typical animosity that plagues
this case, as Court intervention [ECF No. 790] was necessary to accommodate the
scheduling of Mullens deposition and to confirm the Undersigneds previous
unambiguousinstructionsthatthechoiceofdeponentwasProcapstomake.

Mullen used to be CEO of Patheon, but he ceased being CEO in March 2014; a
CEOisnotnecessarilyanemployee,inanyevent.
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seeksanordertoreconveneMullensdepositionsothathecanviewtheseexhibitsand
respondtoquestionsconcerningthem.Patheonopposesthismotion.[ECFNo.844].

BecausePatheonscounselwasonlyadvisingMullentoabidebytheStipulated

Confidentiality Order, under which there is no exception for circumstances such as


these, the motion is denied; however, because of Patheons failure to adequately
comply with the Undersigneds specific instructions in the order establishing the
briefingschedule[ECFNo.841],theUndersignedwillnotimposethestandardFederal
RuleofCivilProcedure37feeshiftingaward.Patheonsvague,incompleteresponsesto
the precise questions required by the Undersigneds briefing schedule Order offsets
Procapsunconvincingmotion.
Analysis

The parties themselves jointly drafted and presented the Stipulated

Confidentiality Order to the Court. [ECF No. 86, p. 1]. Therefore, it was the parties
themselves who established that Confidential documents may be disclosed only to,
amongotherrecipients,counselandanyemployeeofaPartywhoCounselbelievesin
goodfaithhasaneedtoaccesstheinformationsolelyforthepurposesofthisAction.
[Id.,atp.8].Additionally,thepartiesdeterminedthatHighlyConfidentialdocuments
may not be disclosed to a Party or its employees (although it may be shown to the
partysoutsidecounsel).

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Accordingly, the parties themselves, including movant, Procaps, drafted this

Stipulated Confidentiality Order in such a way that it provides for employees to


review Confidential documents, but it does not provide for review by officers or
directors(unlessthey,too,areemployees).Procapsowncounselacknowledgedthis
in a hearingbeforetheUndersigned,at whichtime Procaps wasthe party pursuinga
strictinterpretationoftheStipulatedConfidentialityOrderforthepurposeofexcluding
certain individuals from Patheons camp including one former officer of Patheon
fromattendingadepositiondesignatedasConfidential.[ECFNo.821,p.55(Procaps
counselisquotedassaying:Ibelievethestipulatedorder,IthinkitsDE86,butIcould
bewrong,saysanemployee.Itdoesnotprovideforofficersanddirectors.)].

Now,Procaps,thepartythatpreviouslycarriedthebannerofstrictconstruction

concerning the definition of employee, moves to create an exception to that


interpretation. The Court previously agreed with Procaps strict constructivist
interpretationoftheStipulatedConfidentialityOrderandorderedthattwoindividuals
affiliated with Patheon, Jason Conner and Eric Sherbet, may not attend depositions
designatedasConfidentialorHighlyConfidential.[ECFNo.820,pp.56].

The present situation with James Mullen is analogous to the matter involving

Conner and Sherbet, even if those individuals were not the actual deponents. In each
instance, the individual was barred from seeing information designated as

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Confidential under the Stipulated Confidentiality Order because the individual was
notanemployeeascontemplatedbythatOrder.
Previously, Procaps convincingly argued that officers and directors are not
employeesandthuscannotviewConfidentialinformation.TheCourtagreed.Thus,
when Patheons counsel invoked this same rule to prevent certain documents marked
ConfidentialandHighlyConfidentialfrombeingpresentedtoMullen,hewasonly
followingtheCourtspreviousorderonthisverysamesubject(aswellasadoptingthe
verypositionthatProcapsitselfpreviouslytookonthisissue).

Procaps now seeks an order that either finds a nonexistent exception in the

Stipulated Confidentiality Order or rewrites the Stipulated Confidentiality Order


altogether. As emphasized above, it was the parties to this case who drafted and
presented the Stipulated Confidentiality Order to the Court. Two years later, a party
cannot unilaterally take the position that a certain provision needs to be rewritten
becausethatpartyhappenstohavedevelopedaneedforcertaininformation.Suchan
argumentisinherentlyillogical,butitisespeciallyunconvincingwhenthatsameparty
veryrecentlymovedtoenforcetheverysameprovisionthatitnowseekstorewriteor,
ineffect,eliminate.

Needlesstosay,thereisnoMullenexceptiontotheStipulatedConfidentiality

Order, nor is there a butwenowneedtheinformationforourmotion exception.


The Undersigned appreciates that Procaps is frustrated with its inability to smoothly
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obtain information it thinks it needs to further bolster its motion to add or substitute
DPx. That frustration was palpable from the Mullen deposition transcript and is
mirroredinthetenorofProcapsmotiontoreconvenethedeposition.TheUndersigned
fully understands why Procaps wants to question Mullen about certain Confidential
and Highly Confidential documents. The need is legitimate, to be sure. But need
alone is inadequate to justify an exception to the Stipulated Confidentiality Order.
Patheon had a bona fide litigation reason to have Sherbet attend a deposition, but that
wasinsufficienttocauseittohappeninthefaceoftheStipulatedConfidentialityOrder.
Two years ago, Procaps made a strategic choice to codraft and enter the
StipulatedConfidentialityOrder.Procaps(andPatheon)decided,forwhateverreason,
to not provide access to Confidential documents to, for example, persons who
prepared,received,reviewed,orotherwisehadbeenprovidedaccesstothedesignated
materialpriortoitsproductioninthisAction.3Morerecently,Procapsmadethechoice
to urge strict constructionism concerning the interpretation and enforcement of the
ConfidentialandHighlyConfidentialinformationclauses.TheUndersignedsided
withProcapsonthatissuepreviously,andwillnotnowcreateanewexceptiontothe
ConfidentialityOrdersolelyforthebenefitofProcaps.

This quoted language is from a Stipulated Confidentiality Order entered by a


district judge presiding over an MDL case in the Eastern District of Tennessee.
Patheons counsel was involved in that case and submitted it here to demonstrate
situations where parties chooseto permit broader access to Confidential documents
thanthekindagreedtohere.[ECFNo.8441].
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To the extent that Procaps believes it is being strategically handcuffed by the


Stipulated Confidentiality Order, the Court simply notes that the Order is a stipulated
one.Anditnotestheapplicabilityofafolksyexpressionalreadyusedseveraltimesin
thiscase:Whatssauceforthegooseissauceforthegander.Accordingly,themotion
isdenied.

AttorneysFees

In its response to Procaps motion to reconvene Mullens deposition, Patheon

askstheUndersignedtoawarditattorneysfees.Typically,theUndersignedwould(in
theabsenceofanapplicableexception)awardattorneysfeestotheprevailingpartyina
discovery dispute in accordance with Rule 37s feeshifting provision. That provision
establishes a presumption of attorneys fees to the prevailing party and, in fact,
mandates a fees award unless one or more of a limited list of exceptions applies.
However,theUndersignedwillnotawardfeestoPatheon.

Procaps motion was unconvincing, advocating a position that was directly

contrary to a very recent ruling by the Undersigned with no new facts or case law to
support such an argument. Normally, this would be grounds for a fees award for the
opposingpartyprevailinginadiscoverydispute.

However, after Procaps motion was filed, the Undersigned provided very

specific instructions to Patheon concerning its response. Specifically, the Undersigned


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orderedthatPatheonshallalsoexplain,onanexhibitbyexhibitbasis,whetherMullen
prepared, reviewed, publicly discussed, privately discussed or had access to each
confidential exhibit used or attempted to be used at his recent deposition. [ECF
No. 841]. Patheons response simply stated vaguely whether Mullen had seen any
documentbefore.[ECFNo.844,pp.34].
ThequestionpresentedtoPatheonwasprecise,buttheresponsewasambiguous
and vague and not particularly helpful in assisting the Undersigned factually
understandthisissue.Forexample,PatheoncrypticallynotedthatMullenhadseena
document outside of the litigation. What does that mean? Is that the same as
reviewed? If he actually prepared the document,4 then the hazy response does not
disclose this, but the response would technically not be inaccurate. Similarly, if he
discussed the document with someone, then the vague response would still not be
actuallyfalse,thoughitwouldbe,atbest,incomplete.

ThepartiesdidnotdrafttheStipulatedConfidentialityOrdersothatthedrafter
ofaConfidentialdocumentcouldhaveaccesstoitwhennolongeranemployee.In
the absence of consent from all parties, the Undersigned is not going to rewrite the
stipulatedorder,especiallywhenanotherpartyspecificallyobjects.
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Because of Patheons nebulous responses to a direct briefing directive from the


Court, the Undersigned finds that attorneys fees should not be granted in Patheons
favorasthepresidingpartyinthisdiscoverydispute.5

DONEANDORDEREDinChambers,inMiami,Florida,August12,2015.

Copiesfurnishedto:
AllCounselofRecord

In an order entered approximately a year and a half ago in this case [ECF No.
442],theUndersignedcitedPetersTurnballv.Bd.ofEduc.oftheCityofNewYork,No.96
CIV4914(SAS),1999WL959375,at*3(S.D.N.Y.Oct.20,1999)forthepropositionthat
acourtneednotbegapartytocomplywithitsorders.Atthetime,thecitedreference
was focused at Procaps. It is therefore appropriate to cite it now again in connection
withPatheonsdecisiontobeincompleteinitsresponsetoanOrder.
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